STEVE KOTOSKY, Employee, v. CEMSTONE PRODS. CO., and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer, and CEMSTONE PRODS. CO., and SAFECO INS. COS., Employer-Insurer/Appellants, and CEMSTONE PRODS. CO., SELF-INSURED/RISK ENTER. MGMT., Employer-Insurer/Cross-Appellants, and SUMMIT ORTHOPEDICS and CONCRETE PRODS. COS. H&W FUND, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 1, 2005

 

No. WC04-292

 

HEADNOTES

 

GILLETTE INJURY - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the compensation judge=s decision that the employee sustained two Gillette injuries to his right hip, leading to the need for total hip replacement surgery.

 

Affirmed.

 

Determined by: Wilson, J., Pederson, J., and Rykken, J.

Compensation Judge: Nancy Olson

 

Attorneys: Bonnie A. Peterson, Sieben, Grose, Von Holtum & Carey, Minneapolis, MN, for the Employee.  Thomas A. Atkinson, John G. Ness & Associates, St. Paul, MN, for the Employer and St. Paul Fire and Marine Insurance Company.  Lori J. LeCount, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.  Barbara B. Bloom, Rider Bennett, Minneapolis, MN, for the Cross-Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and Safeco Insurance Companies appeal and the self-insured employer cross-appeals from the compensation judge=s findings concerning liability for alleged Gillette injuries^[1] to the employee=s right hip.  We affirm.

 

BACKGROUND

 

The employee began working as a cement truck driver for Cemstone Products [the employer] in 1986, when he was 23 years old.  During a typical work day, the employee would haul five to seven loads of cement to job sites.  During each delivery, the employee would, on average, climb into and out of the cement truck three to six times, using a three-rung ladder, in order to help unload the cement, scrape the cement chute down, and wash the truck off.  The employee testified that the ground at job sites was uneven and often very icy or muddy.

 

It is undisputed that the employee is a very poor historian who is not a reliable source of information as to the timing of events.  He testified, however, that at some point during his employment with the employer, possibly sometime in 1989, he struck the right side of his buttocks on a ladder as he jumped down off a truck at work.  He further testified that his right lower buttock was bruised and achy for a few days and that he filed an injury report concerning the incident with the employer.  St. Paul Fire & Marine Insurance Company, the employer=s workers= compensation insurer in 1989, paid no medical or indemnity benefits related to this alleged injury, and no report concerning this injury was offered into evidence.

 

In early 1997, the employee sustained a hernia injury while working for the employer.  According to medical records, the employee reported to his doctor that he had been experiencing pain Ain the right inguinal area@ for the past four or five months and that, Awhen he sits down he feels like something gets pinched as he brings up his [right] hip into flexion.@  The employee underwent surgery to treat the hernia, and the employer and its insurer admitted liability for the injury and paid various benefits.

 

The employee testified that, following his hernia repair, he began to experience pain in his Aright inner groin,@ similar to the pain he had experienced with the hernia.  On September 15, 1998, the employee sought treatment at Specific Family Chiropractic for right hip pain that had, according to treatment notes, Abegun 4-5 years ago.@  Those treatment notes also indicate that the employee was Aa truck driver [and] reports pushing on gas pedal is a big aggravator to condition.@  According to the patient history form completed by the employee, the employee had low back and upper right leg pain that had begun two years ago and was aggravated by work.  Right hip x-rays taken at that time apparently disclosed acetabular and femur head degeneration.

 

On February 5, 1999, the employee reported an injury to the employer.  The First Report of Injury indicates that the employee was having Apain in right groin and low back, cause unknown.@  The employer and its insurer at the time, Safeco Insurance Companies, eventually admitted primary liability for a groin and low back injury.  However, no wage loss benefits were paid, in that the employee did not miss any time from work.^[2]

 

In April of 1999, the employee was seen by Dr. John Dowdle, apparently on referral from his chiropractor.  Dr. Dowdle=s April 13, 1999, office note indicates that the employee had reported having experienced worsening right hip pain, mainly in the groin area, that bothered him Abecause he is unable to get his sock and shoe on on that side and has difficulty at work.  He reports that this has come on gradually although he has had some exacerbations at work.@  After reviewing x-rays, Dr. Dowdle concluded that the employee had osteoarthritic changes of both hips, right greater than left.  Dr. Dowdle=s recommendations at that time were as follows:

 

At this point, I would put him on oral anti-inflammatory medicines.  I anticipate he is going to continue to have difficulties with his hip.  It is stiff now and at some point in the future he is going to need a hip replacement.  I would consider him for a cane or other protective device.  I anticipate that with his significant decreased motion that he is going to need a hip replacement in the not too distant future.

 

In December of 2000, the employee was seen by Dr. Richard Ivance, again for evaluation of right hip pain.  Dr. Ivance=s records indicate that the employee had injured his hip in a fall from his truck at work Aabout five years ago@ and that the hip had been hurting the employee since that time, with a progressive decrease in range of motion.  Dr. Ivance indicated that, on exam, the employee had no rotation at all of his right hip, and x-rays were read to show a complete loss of the articular surface of the hip, along with osteophyte formation.  The employee was prescribed Vioxx and vitamins, was advised to limit his activities, and was told to come in for a cortisone injection if his pain became acute.  The employee testified that he was told by Dr. Ivance and other physicians that he should avoid having hip replacement surgery for as long as possible.  The employee also testified that, while he continued to work without restrictions or time off, his hip symptoms progressively worsened as time went on.

 

In September of 2003, the employee consulted Dr. Jack Drogt about surgery because  his hip pain had progressed to the point that he Acouldn=t take it any more.@  Noting that the employee was Aconsiderably disabled@ at that time and that he had come Aprepared, in advance, to consider surgical intervention,@ Dr. Drogt advised the employee of the risks and benefits of surgery.  That surgery, a right total hip arthroplasty, was performed by Dr. Drogt on December 22, 2003.   Following his recovery from surgery, the employee eventually returned to work for the employer in his usual job.

 

The matter came on for hearing before a compensation judge on July 29, 2004, for resolution of the employee=s claim for various benefits from the employer related to his right hip condition, surgery, and resulting disability.  Defending against the claim were St. Paul Fire & Marine Insurance Company, the insurer on the risk at the time of the employee=s alleged 1989 specific right hip injury; Safeco Insurance Companies, the insurer on the risk at the time of an alleged February 5, 1999, Gillette injury; and the self-insured employer, with claims administered by Risk Enterprise Management [REM], which had workers= compensation liability on the date of an alleged Gillette injury culminating on September 11, 2003.  The primary issues were whether the employee had sustained a specific right hip injury sometime in 1989, whether the employee had sustained Gillette injuries in February of 1999 and/or September of 2003, and whether liability for the employee=s hip condition should be apportioned.  Evidence included the employee=s treatment records and causation opinions from Dr. Drogt, Dr. Paul Dworak, and Dr. Gary Wyard.

 

In a decision issued on September 20, 2004, the compensation judge concluded that the employee=s alleged 1989 injury did not substantially contribute to the employee=s right hip condition, that the employee had sustained Gillette injuries to his right hip on both February 5, 1999, and September 11, 2003, and that the two Gillette injuries were equally responsible for the employee=s need for right hip surgery and resulting disability.  Liability for all claimed benefits was apportioned on a 50-50 basis.  Both Safeco and REM appeal.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

On appeal, Safeco contends that substantial evidence does not support the conclusion that the employee sustained any work-related Gillette injury to his hip.  In the alternative, Safeco contends that, if a Gillette injury did occur, substantial evidence does not support the conclusion that such an injury occurred on February 5, 1999, or that the employee=s work activities during Safeco=s coverage period substantially contributed to the injury.  Finally, Safeco alleges that the compensation judge erred in apportioning liability for what could only be characterized as a single Gillette injury.  For its part, REM maintains on cross-appeal that the judge erred in finding a second Gillette injury culminating on September 11, 2003, and that Safeco should bear sole responsibility for the employee=s hip condition as the insurer on the risk for the February 1999 Gillette.^[3]  We are not persuaded by these arguments.

 

As a general rule, Ainjuries from repeated trauma or aggravation of a pre-existing condition [i.e., Gillette injuries] result in a compensable personal injury when their cumulative effect is sufficiently serious to disable the employee from further work.@  Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  However, the date on which an employee quits working does not automatically constitute the date of injury; rather, Athe time by which [the employee] sustained those injuries should be determined on all the evidence bearing on the issue,@  including Aascertainable events@ evidencing disability.  Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 509 (Minn. 1984).  Furthermore, imposition of liability on the insurer responsible for coverage on the date of the Gillette is Anot automatic but must rest on proof connecting the employee=s disability to the employee=s job duties during that insurer=s period of coverage.@  Crimmins v. NACM No. Central Corp., 45 W.C.D. 435, 439 (W.C.C.A. 1991).  Gillette injury determinations are dependent primarily on the medical evidence.  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).

 

In the present case, the employee gave testimony about the nature of his work activities and which of those activities seemed to aggravate his right hip condition, including climbing in and out of his truck, bouncing along in the truck seat, and walking on slippery and uneven ground at job sites.  After interviewing the employee and reviewing his medical records, three physicians gave opinions on causation.  Dr. Dworak, Safeco=s independent examiner, concluded that the employee=s work activities Aabsolutely were not contributing factors to [the employee=s] osteoarthritis of either of his hips,@ that the work did not cause, aggravate, or accelerate the employee=s condition, and that the employee=s condition was the result of a genetic predisposition to osteoarthritis.  Dr. Wyard, REM=s independent examiner, concluded that 75% of the employee=s hip problems were due to the employee=s Aconstitutional makeup,@ 20% to the alleged 1989 work injury, and 5% to the employee=s work activities from 1986 through 2003.  Dr. Drogt, the employee=s treating surgeon, reported that both the employee=s alleged 1989 hip injury and Aall of the [work] activities he participated in over the ensuing 14 years, caused an accelerated degenerative change of his right hip,@ leading to the need for surgery.  The compensation judge expressly accepted Dr. Drogt=s opinion relative to the issue of whether or not the employee=s work activities had aggravated or accelerated his right hip condition, and, contrary to Safeco=s argument, Dr. Drogt=s opinion is clearly sufficient to support the conclusion that the employee did in fact sustain a Gillette injury in the course and scope of his employment with the employer.

 

The judge=s decision that the employee sustained two Gillette injuries -- one during Safeco=s period of coverage, and one during the period in which REM administered claims for the self-insured employer -- is also supported by evidence that a reasonable mind might accept as adequate.  AAscertainable events@ evidencing disability during Safeco=s period of coverage include the employee=s initial diagnosis with osteoarthritis of the right hip and Dr. Dowdle=s notation in April of 1999 that the employee was having trouble at work and difficulty tying his shoes, that the employee should use anti-inflammatories and consider using a cane or other protective device, and that the employee would need a hip replacement in the Anot too distant future.@  The primary Aascertainable event@ relevant to REM=s period of coverage is that it was during this period, in September of 2003, that the employee was finally unable to tolerate the pain and decided to have the total hip replacement surgery that was ultimately performed in December of 2003.

 

The question of whether the employee=s work during Safeco=s period of coverage was a substantial contributing cause of the employee=s disability is somewhat more difficult.  As of February 5, 1999, the date of injury alleged by the employee and determined by the compensation judge, Safeco had only been providing the employer with workers= compensation insurance coverage for five months.  However, given the employee=s testimony that he climbed in and out of his truck, using a ladder, 15 to 40 times per shift, every shift, and given Dr. Dowdle=s opinion that all of the employee=s work for the employer over the years contributed, we cannot say that it was unreasonable for the judge to have concluded that the employee=s work activities during that five-month period contributed to the employee=s disability.  Moreover, by the time that Dr. Dowdle predicted the employee=s eventual need for hip replacement surgery, in his April 1999 treatment note, Safeco had been providing coverage for nearly eight months.  Under these circumstances, we decline to overturn the judge=s decision to impose liability on Safeco for a Gillette injury culminating on or about February 5, 1999.

 

Finally, we find no error in the judge=s equitable apportionment.  Because the judge was apportioning liability between two Gillette injuries, rather than apportioning liability for a single Gillette injury between two insurers, uncontroverted evidence as to apportionment was not required.  Sanchez v. Land O=Lakes, Inc., 43 W.C.D. 113 (W.C.C.A. 1990).  The remainder of the insurers= arguments regarding apportionment are based on the causation issues already addressed above.

 

The record in this matter might well have supported other determinations as to both liability and apportionment.  However, the issue on appeal is whether the record reasonably supports the decision made by the compensation judge.  Finding no compelling reason to reverse, we affirm the judge=s decision in its entirety.